Opinion
7:24-CV-68-M
04-09-2024
BRUCE H. PARKMAN, SR., Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
Robert B. Jones Jr. United States Magistrate Judge
This matter is before the court on Plaintiffs pro se application to proceed in forma pauperis under 28 U.S.C. § 1915, which permits an indigent litigant to commence suit in federal court without paying administration costs associated with such proceedings, [DE-2], and for frivolity review of the complaint, [DE-1], pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs, and the application to proceed in forma pauperis is allowed. However, it is recommended that the complaint be dismissed.
I. Standard of Review
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) “to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims”).
In the present case, Plaintiff is proceeding pro se. and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). This court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required “to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
II. Discussion
Plaintiff filed a form complaint but left most of it blank. [DE-1 ]. However, Plaintiff stated his case is for ground water contamination at Camp Lejeune and cited the “PACT Act 2022.” Id. at 1. The Camp Lejeune Justice Act (“CLJA”), Pub. L. No. 117-168, § 804, 136 Stat. 1759, 180204, created a new federal cause of action permitting “appropriate relief for harm that was caused by exposure to the water at Camp Lejeune” for individuals who resided, worked, or were otherwise exposed for not less than 30 days during the period between August 1, 1953, and December 31, 1987. Id. § 804(b); In re Camp Lejeune Water Litig., No. 7:23-CV-897, 2023 WL 6053054, at *1 (E.D. N.C. Sept. 15, 2023). Congress required individuals to exhaust administrative remedies under “section 2675 of title 28, United States Code” before filing a CLJA action in court. See Pub. L. No. 117-168, § 804(h); 28 U.S.C. § 2675; In re Camp Lejeune Water Litig, 2023 WL 6053054, at * 1.
In order to exhaust administrative remedies under the CLJA, a plaintiff must present a claim to the Department of the Navy and the claim must have been finally denied. 28 U.S.C. § 2675(a); Pearce v. United States, No. 7:23-CV-3-D, 2023 WL 2290779, at *1 (E.D. N.C. Feb. 28, 2023) (“[A plaintiff] must first comply with the Camp Lejeune Justice Act's exhaustion provisions before filing suit under the Act, and ‘[t]he administrative exhaustion requirement cannot be waived.'” (quoting Fancher v. United States, 646 F.Supp.3d 694 (E.D. N.C. )); Pugh v. United States, No. 7:22-CV-124-BO, 2023 WL 1081262, at *4 (E.D. N.C. Jan. 27, 2023) (“Before a plaintiff may bring an action under the CLJA, he or she must first comply with the Federal Tort Claims Act (FTCA) by presenting the claim to the appropriate federal agency, here the Navy.” (citing CLJA § 804(h); 28 U.S.C. § 2675(a))). “The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.” 28 U.S.C. § 2675(a).
Plaintiff did not allege in his complaint that he resided, worked, or was otherwise exposed to the water at Camp Lejeune for not less than 30 days during the period between August 1,1953, and December 31, 1987. Plaintiff did provide the court with copies of medical and Veterans Affairs records, [DE-1-1 to -1-5, -1-7, -1-10, -1-12 to -1-14], a February 25, 2019 letter from the Department of the Navy and related correspondence regarding Plaintiffs administrative claim for personal injury from the exposure to contaminated water at Camp Lejeune, [DE-1-6, -1-8, -1-9,-1-15], and an order and judgment from the Court of Federal Claims dismissing Plaintiffs claim for alleged harm from contaminated water at Camp Lejeune, [DE-1-11].
Any claim filed with the Navy prior to when the Camp Lejeune Justice Act became effective on August 10, 2022, is insufficient to satisfy the administrative exhaustion requirement in section 804(h) of the Camp Lejeune Justice Act. Fancher, 646 F.Supp.3d at 697. This court previously held that “a plain reading of section 804(h) makes clear that section 804(h) applies only to a claim in an action that has fyet to be brought-not to ones that have already been filed.'” Id. at 699 (quoting Bishop v. Lewis, 155 F.3d 1094, 1095 (9th Cir. 1998)). In order to state a claim,
Plaintiff must allege that he resided, worked, or was otherwise exposed to the water at Camp Lejeune for not less than 30 days during the period between August 1, 1953 and December 31, 1987, and that he exhausted his administrative remedies, including the date that he submitted a claim to the Navy and the date that the Navy actually or constructively denied it. Neither Plaintiffs complaint nor the attached documents indicate that he filed a claim with the Navy after the CLJA became effective.
On March 18, 2024, the undersigned entered an order directing the Clerk's Office to provide Plaintiff with the Short-Form Complaint used for the Camp Lejeune Water Litigation and giving Plaintiff until April 1, 2024 to correct the above-described pleading deficiencies. [DE-5]. However, Plaintiff did not file the requisite Short-Form Complaint or otherwise attempt to plead the required elements. Plaintiffs failure to plead exhaustion of remedies is grounds for dismissal of his complaint. Fancher, 646 F.Supp.3d at 697. Accordingly, it is recommended that the complaint be dismissed without prejudice for failure to exhaust administrative remedies.
III. Conclusion
For the reasons stated above, the application to proceed in forma pauperis is allowed and it is recommended that Plaintiffs complaint be dismissed without prejudice for failure to exhaust administrative remedies.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on the Plaintiff. You shall have until Tuesday, April 23, 2024, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g, 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline may bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).